Citation NR: 9731309
Decision Date: 09/12/97 Archive Date: 09/17/97
DOCKET NO. 96-29 043 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a left knee
disability.
2. Entitlement to service connection for sleep apnea.
3. Entitlement to service connection for a circulatory
disorder of the lower legs and hips.
4. Entitlement to service connection for hypertension.
5. Entitlement to service connection for headaches as
secondary to hypertension.
6. Entitlement to service connection for bilateral
conjunctivitis.
7. Entitlement to service connection for post-traumatic
stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. M. Flatley, Counsel
INTRODUCTION
The veteran had active service from June 1969 to June 1971
and from January to May 1991. He also had periods of active
and inactive duty for training.
At his personal hearing, the veteran withdrew the issue of
entitlement to service connection for headaches on a direct
basis, limiting his claim to entitlement to service
connection for headaches as secondary to hypertension. In
view of the veteranís statement, as contained in the written
transcript, the Board of Veteransí Appeals (Board) accepts
that the issue of service connection on a direct basis has
been effectively withdrawn. 38 C.F.R. ß 20.204 (1996).
With the exception of entitlement to service connection for
bilateral conjunctivitis, the issues on appeal will be
addressed in the remand section that follows the decision
below.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he experienced
bilateral conjunctivitis in service and that service
connection for the disorder is therefore warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteranís
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not presented
a well-grounded claim of entitlement to service connection
for bilateral conjunctivitis.
FINDING OF FACT
Bilateral conjunctivitis is not currently demonstrated.
CONCLUSION OF LAW
The veteranís claim of entitlement to service connection for
bilateral conjunctivitis is not well-grounded. 38 U.S.C.A.
ß 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well-grounded. 38 U.S.C.A. ß 5107; Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim
is a plausible claim, or a claim that appears to be
meritorious. Murphy, 1 Vet.App. at 81. An allegation that a
disorder is service-connected is not sufficient; the veteran
must submit evidence in support of the claim that would
ďjustify a belief by a fair and impartial individual that the
claim is plausible.Ē 38 U.S.C.A. ß 5107(a); Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). In order for a claim
to be well-grounded, there must be competent evidence that
the veteran currently has the claimed disability. Rabideau
v. Derwinski, 2 Vet.App. 141, 143 (1992). There must also be
evidence of incurrence or aggravation of a disease or injury
in service. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
The veteran must also submit evidence of a nexus between the
in-service disease or injury and the current disability. Id.
In pertinent part, medical records show that while on
inactive duty for training in October 1989, the veteran
received treatment for viral conjunctivitis of the right eye.
At his personal hearing, the veteran reported that he had not
received treatment recently for conjunctivitis and that he
last ďhad a major problemĒ with the disorder in 1989.
Transcript (T.) at 15.
On Department of Veterans Affairs (VA) examination in
November 1995, the veteran reported a history of
conjunctivitis in the 1980ís that had recurred
intermittently. He noted that he had received medication at
the time. He was not using medication at the time of the
examination nor had he used it during the previous year.
Examination of the eyes revealed normal findings. It was
noted in particular that no abnormalities of the conjunctivae
were present. The diagnoses included history of bilateral
conjunctivitis, asymptomatic at this time. On VA outpatient
eye evaluation in May 1996, ďgood ocular healthĒ was found.
As illustrated above, bilateral conjunctivitis is not
currently shown. Competent evidence of current disability,
therefore, has not been presented. As such, the veteranís
claim of entitlement to service connection for bilateral
conjunctivitis is not well-grounded. Rabideau, 2 Vet.App. at
143.
If the veteran fails to submit evidence in support of a
plausible claim, the VA is under no duty to assist the
veteran in the development of his claim. Grottveit v. Brown,
5 Vet.App. 91, 93 (1993). Furthermore, a claim that is not
well-grounded must be denied because it does not present a
question of law or fact over which the Board has
jurisdiction. See 38 U.S.C.A. ß 7105(d)(5) (West 1991); See
also Edenfield v. Brown, 8 Vet.App. 384 (1995), Beausoleil v.
Brown, 8 Vet.App. 459 (1996).
The Board points out that throughout the appeal process,
including in the May 1996 statement of the case, the veteran
has been informed of the evidence required to substantiate or
complete his claim. See Robinette v. Brown, 8 Vet.App. 69
(1995).
ORDER
Entitlement to service connection for bilateral
conjunctivitis is denied.
REMAND
The dates of the veteranís inactive and active duty for
training have not been verified. Efforts to obtain medical
records associated with such service have been unsuccessful.
In June 1995, the US Army Personnel Center (ARPERCEN) stated
that no records were available, and suggested that they may
have been stored at the veteranís unit, the 94th General
Hospital. In July 1995, the 94th General Hospital stated
that no records were available and suggested contacting
ARPERCEN. A report of contact dated in September 1995
indicates that the regional office (RO) intended to contact
the veteranís reserve unit to determine whether service
medical records were available. In a reply received in March
1996, the National Personnel Records Center suggested that
the RO contact the veteranís prior Army National Guard unit
or State National Guard headquarters to determine if
additional records were available. Attempts to obtain the
veteranís personnel records, particularly those associated
with his Vietnam service, have also been unsuccessful.
Available medical records show that the veteran received
treatment for complaints of left knee pain, with a history of
multiple injuries, in April 1991. Currently, clinical
evidence reflects findings or diagnoses of mild degenerative
changes of the left knee, sleep apnea, potential peripheral
vascular disease, and hypertension. A diagnosis of post-
traumatic stress disorder was made on VA examination in 1995.
In addition, the evidence of record reflects that the veteran
has received treatment from private physicians and from the
VA.
At his personal hearing in August 1996, the veteran testified
that he had received treatment for left knee injuries in
service. He stated that sleep apnea began during his period
of service in Vietnam. T. at 6. He indicated that he sought
treatment for the disorder in the 1970ís. T. at 7. He
reported that he had been receiving treatment for
hypertension since the early 1970ís and had been medicated
for the disorder since 1974. T. at 2, 11.
With regard to the veteranís claim of service connection for
post-traumatic stress disorder, the Board notes that the
veteran has provided statements as to the incidents that he
experienced in service which he alleges are the foundation
for the disorder. The statements, however, in large part, do
not contain specific information with respect to dates and
places of the occurrences claimed. The veteranís
representative has requested that this aspect of the
veteranís case be remanded for adjudication in accordance
with the United States Court of Veterans Appeals (Court)
analysis in Cohen v. Brown, 10 Vet.App. 128 (1997).
The veteranís second period of active service, from January
to May 1991, occurred during the Persian Gulf War. His
report of separation from service reflects that he served in
support of ďOperation Desert Shield/Desert Storm.Ē The
report also reflects foreign service in excess of three
months. However, an April 1991 clinical record reflects that
the veteran was in Germany. It appears, therefore, that the
veteran did not serve in the Southwest Asia theater of
operations during the Persian Gulf War. 38 C.F.R.
ß 3.317(d)(2) (1996). Further, the veteran reports that his
hypertension and sleep apnea occurred during his service in
Vietnam. In spite of the aforementioned, it should be
determined whether the veteran served in the Southwest
theater of operations during his active service in 1991.
With respect to his post-traumatic stress disorder claim, the
veteran maintains that he was exposed to combat in Vietnam.
The record discloses that he served in Vietnam from November
1969 to November 1970. According to his DD Form 214, his
military occupational specialty was light weapons
infantryman; however, that form does not indicate that he was
awarded the Combat Infantryman Badge (CIB), Purple Heart
Medal or other decoration indicative of combat service.
Nevertheless, a VA psychiatric examination conducted in 1995
resulted in a diagnosis of post-traumatic stress disorder,
delayed.
The question of whether the appellant was exposed to a
stressor in service is a factual determination and VA
adjudicators are not bound to accept such statements simply
because treating medical providers have done so. Wood v.
Derwinski, 1 Vet.App. 190 (1991) (affirmed on
reconsideration, 1 Vet.App. 406 (1991). However, in
statements received in August 1996, the veteran provided
information regarding his Vietnam experiences. See in
particular page 2 of his statement (VA Form 21-4138), dated
April 18, 1996. Also, at his personal hearing, the veteran
reported that a friend Sherman Howard, with whom he served in
Vietnam., could verify some of the claimed stressors.
In view of the foregoing, the Board concludes that further
action is required. This case is therefore REMANDED for the
following:
1. The RO should obtain verification of
the veteranís periods of active and
inactive duty for training from the
National Personnel Records Center (NPRC)
or the service department. Additionally,
another attempt should be made to obtain
the veteranís service personnel records,
including his 201 file pertinent to his
period of active duty from June 1969 to
June 1971, and any additional medical
records, particularly those associated
with periods of inactive and active duty
for training. It is noted that the
veteran was retired from the Army Reserve
in September 1994. All available sources
should be contacted, including the NPRC,
ARPERCEN, the veteranís last reserve
unit, and the State National Guard
headquarters. If indicated, a search
should again be conducted for the
veteranís records at the 94th General
Hospital.
2. The veteran should be afforded the
opportunity to submit any statements
which may corroborate his claimed
stressors, such as from his friend
Sherman Howard. He should also be asked
to submit copies of any orders to active
duty for training, copies of any other
service personnel records, and copies of
any service medical records in his
possession. Also, he should be asked
where he was stationed during his period
of active duty from January to May 1991.
3. After any necessary information and
authorization are obtained from the
veteran, copies of any post-service
medical records regarding the disorders
at issue, VA or private, inpatient or
outpatient, should be obtained by the RO
and incorporated into the claims folder.
The ROís attention is directed to the
veteranís testimony that he has received
VA and private treatment since service,
including in the early 1970ís.
4. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding the stressors to which he
alleges he was exposed in service. The
veteran should be asked to provide
specific details of the claimed stressful
events during service, such as dates,
places, detailed descriptions of events,
and identifying information concerning
any other individuals involved in the
events, including their names, ranks,
units of assignment or any other
identifying detail. He specifically
should be asked to (1) fully identify the
unit(s) with which he served in Vietnam,
and, if more than one, the approximate
dates he served with each; (2) provide
the names of the lieutenant, the RTO, and
the pointman who hit a mine in about
September 1970 and indicate whether they
were members of his unit and whether they
were injured or killed, providing the
requested information for each person;
and (3) give the approximate date that he
and others went into a village and were
fired upon by the Vietnamese but could
not fire back because they were friendly
and the name of the village. The veteran
is advised that this information is
vitally necessary to obtain supportive
evidence of the stressful events and that
he must be as specific as possible
because without such details an adequate
search for verifying information cannot
be conducted.
5. With the additional information
obtained, the RO should review the file
and prepare a summary of all the claimed
stressors. This summary, and copies of
all associated documents including the
veteranís DD Form 214, his 201 file if
obtained, his handwritten statement
received on August 22, 1996, and his
typewritten statement (2 pages) received
on August 16, 1996, should be sent to the
United States Armed Services Center for
Research of Unit Records (USASCRUR), 7798
Cissna Road, Suite 101, Springfield,
Virginia 22150-3197. USASCRUR should be
requested to provide any information that
might corroborate the veteranís alleged
stressors. Copies of any unit histories
or the like, showing unit casualties and
operations, etc., for the one year period
during which the veteran served in
Vietnam, would be helpful to the Board.
6. Following the above, the RO must make
a specific determination, based upon the
complete record, as to whether the
veteran was engaged in combat with the
enemy and was exposed to a stressor or
stressors in service, and if so, the
nature of the specific stressor(s). If
the RO determines that the record
establishes the existence of any
stressor(s), the RO must specify what
stressors in service it has determined
are established by the record. In
reaching this determination, the RO
should address any credibility questions
raised by the record. However, the
sufficiency of any stressor to cause PTSD
is a medical, rather than adjudicatory,
determination.
7. If the RO determines that the record
establishes the existence of any
stressors in service, then the RO should
arrange for the veteran to be afforded an
examination by a board of two VA
psychiatrists, if available, who have not
previously examined him, to determine the
diagnoses of all psychiatric disorders
that are present. The claims folder and
a separate copy of this remand should be
made available to the examiners, the
receipt of which should be acknowledged
in the examination report(s). The RO
must specify for the examiners the
stressors that it has determined are
established by the record and the
examiners must be instructed that only
those events may be considered for the
purpose of determining whether exposure
to a stressor in service has resulted in
current psychiatric symptoms and whether
the diagnostic criteria to support the
diagnosis of post-traumatic stress
disorder have been satisfied. The
examination reports should reflect review
of pertinent material in the claims
folder. The examiners should integrate
any previous psychiatric findings and
diagnoses with current findings to obtain
an accurate picture of the nature of the
veteranís psychiatric status. If post-
traumatic stress disorder is diagnosed,
the examiners should comment explicitly
upon whether the events claimed by the
veteran as a stressor and confirmed by
the RO are of the quality required to
produce post-traumatic stress disorder.
The also should indicate which of the
diagnostic criteria of DSM- IV for post-
traumatic stress disorder have been
satisfied and which criteria have not
been satisfied; describe the symptoms and
manifestations that meet the specific
criteria; and comment explicitly upon
whether there is a link between the
stressor(s) in service and the current
diagnosis of post-traumatic stress
disorder. 38 C.F.R. ß 3.304 (1996). All
necessary special studies or tests, to
include psychological testing and
evaluation, should be conducted. The
report of examination should include the
complete rationale for all opinions
expressed. A comprehensive report, which
addresses the aforementioned, should be
furnished and associated with
the claims file.
8. The RO should afford the veteran a
special orthopedic examination to
determine the nature and etiology of any
left knee disability. All indicated
studies should be conducted. The
examination report should include a full
description of the veteranís symptoms,
clinical findings, and associated
functional impairment. All findings
should be recorded in detail, including
range of motion of the veteranís left
knee, recorded in degrees. After
reviewing the record, including pertinent
service medical records, the examiner
should address the following:
(a) whether any left knee disability is
present; and
(b) whether it is more likely than not
that any current left knee disability is
related to the veteranís complaints of
left knee symptomatology in service are
related.
A comprehensive report, which represents
consideration of the aforementioned
factors, should be provided. The
veteranís claims folder and a separate
copy of this remand, must be made
available to the examiner for review in
conjunction with the examination.
9. After review of any additional
records obtained, the RO should arrange
for any other special examinations deemed
necessary.
10. The RO should review the examination
reports and determine whether the
findings comply with the above requests.
If not, the reports should be returned to
the examining facility to correct any
deficiencies.
11. The RO should then review the
veteranís claims. All pertinent law
should be considered, including Cohen v
Brown, No. 94-661 (U.S. Vet. App. March
7, 1997). If the veteranís claims remain
in a denied status, he and his
representative should be provided with a
supplemental statement of the case, which
includes any additional pertinent law and
regulations and a full discussion of
action taken on the veteranís claims.
The applicable response time should be
allowed.
The case should then be returned to the Board, if in order,
after compliance with customary appellate procedures. No
action is required of the veteran until he is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veteransí Benefits Improvements Act of 1994, Pub. L.
No. 103-446, ß 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
ß 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBAís ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JANE E. SHARP
Member, Board of Veteransí Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veteransí
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veteransí Judicial Review Act, Pub.
L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veteransí Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Boardís decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1996).
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